Worker regularity based on nature of job, not the written employment contract

Dear PAO,
I have been working in this beverage company since 2010 under one-year contract and was renewed yearly up until this year.
It is stated in one of the provisions of the contract that I’m not entitled to any benefits and privileges that regular employees get. I’m wondering if I can get a 13th month pay under Department Order 18-A, Series of 2011. Would there be any chance that I can be a regular employee since I have been with them for almost three years. Thanks. I hope you can enlighten me on this matter.
Abub

Dear Abub,
Article 280 of the Labor Code of the Philippines is enlightening with regard to who should be considered a regular employee. The said law provides that:

“Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.”

It is clear from the provisions of the cited law that if the work performed is necessary and desirable to the business of the employer then the employee will be deemed as regular regardless of the stipulations to the contrary. In other words, what determines regularity is not the written employment contract, but the nature of the job (Azucena, Everyone’s Labor Code, 2010 update, citing A.M. Oreta, August 10, 1989).

Since your employment is based on a contract limited to a period of one year, you may initially be considered as a project, or contract worker. Generally, contract workers are not considered regular employees, since their services are needed only when there are projects to be undertaken (Cartagenas v. Romago Electric Co., G.R. No. 82973, September 15, 1989). Nonetheless, should the employment of the project or contract employees be extended after the end of the supposed project, the said employees can now be considered as regular employees (Azucena, Everyone’s Labor Code).

Furthermore, a project employee in a private company or entity may acquire the status of a regular employee when:

a. There is a continuous rehiring of project employees even after the end of the project;

b. The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer (Ibid).

Thus, considering that you have been re-hired several times already, and if determined that you perform necessary and indispensable tasks to your employer, your status may become that of a regular employee, and thus, entitled to all the rights and privileges as provided by law.

With regard to Department Order (DO) 18-A, Series of 2011 that you mentioned, note that this department order applies to employees engaged in a contracting and subcontracting arrangement. Sec. 8 of DO 18-A, Series of 2011 specifically provides for the rights and privileges that such employees are entitled to, which includes:

“Sec. 8. Rights of contractor’s employee. All contractor’s employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, to include the following:

a. xxx

b. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month pay and separation pay as may be provided in the Service Agreement or under the Labor Code. xxx”

Thus, should your employment be based on such arrangement, you are still entitled to a 13th month pay as clearly provided by law.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net